Tarbox v. Inh. Of Town of York

• Court: Superior Court of Maine
• Decided: September 27, 2011
• Docket: YORap-11-017
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-11-D17 v~\== . Yol<- q ' )'

ROBERT J. TARBOX, et al.,

Plaintiffs

v. ORDER

THE INHABITANTS OF TOWN OF YORK, et al.,

Defendants

The plaintiffs own real estate at 165 Woodside Meadow Road in York, Maine,

which abuts a proposed unaccepted way depicted on a subdivision plan entitled

"Woodside Meadow Phase Two, York, Maine" recorded at Plan Book 78, page 33. The

history of this dispute can be found at Tarbox v. Blaisdell, 2009 ME 123 and Mem. 10-123.

On January 7, 2011 the York Director of Public Works granted permits to

defendant HDV Enterprises, LLC (HDV) to open a town highway (R.2) and to install a

driveway (R.4) in York to access its land in Kittery. The plaintiffs appealed these

decisions to the York Board of Appeals, which denied the appeal in a decision dated

April 13, 2011, (R.45-6). A further appeal to the Superior Court followed, which has

been briefed and argued.

The prior litigation and the record in this case indicate that there is a vigorous

dispute as to the ownership of a miniscule but essential piece of land that is necessary

for HDV to access its land. The Board of Appeals determined that it "... cannot

determine land ownership, or title to property" and that "The York DPW cannot

determine land ownership, or title to property." It also found that "HDV Enterprises presented the Town with sufficient evidence of Legal Right, Title and Interest in the

property in question to prima facie establish ownership." Lastly it noted, "Counsel for

HDV Enterprises represented that no action would be taken on the permits without

providing the appellant with notice adequate to seek ... Injunctive Relief." (R.45-6 and

factual determinations S-11).

The initial issue is whether the Board's decision to not decide title was correct

such that a determination of title must be decided in a separate declaratory judgment

action or quiet title action rather than in the context of an appeal pursuant to Rule SOB,

M.R.Civ.P.

HDV is required to have standing in order to seek and obtain the road opening

and driveway permits. "To have standing, that is, a sufficient personal stake in the

outcome of a case, a party must have a 'right, title or interest' in the property he or she

seeks to develop." York v. Town of Ogunquit, 2001 ME 53, <][7.

I agree with HDV' s arguments that it had standing to seek the permits as it had

enough of a claim, however uncertain or disputed, to meet the requirements of "right,

title or interest." Neither the Director of Public Works nor the Board of Appeals were

required to determine whether HDV, the plaintiffs or another person or entity actually

owned the remaining disputed areas. Neither should the Superior Court make that

decision in the sole context of an appeal pursuant to Rule SOB.

After the Board made its decision the Legislature approved and the Governor

signed L.D. 1473 entitled "An Act to Clarify Rights-of-way Laws." These amendments

to 33 M.R.S.A. §469-A become effective this week and, if constitutional (see Driscoll v.

Mains, 2005 ME 52) could well vest title in the plaintiffs and preclude HDV from

building.

2 This decision is a narrow one. It does not determine who owns the small

disputed area and does not ultimately determine whether the road opening and

driveway permits can be utilized. This decision determines only that the Board

properly performed the important, but narrow, task assigned to it.

The entry is:

Decision of the York Board of Appeals is affirmed.

Dated: September 27, 2011

~:!m# Justice, Superior Court

Plaintiffs' Attorney: Sandra Guay, Esq. Woodman Edmands Danylik & Austin PO Box 468 Biddeford, ME 04005

Defendant, HDV Enterprises, LLC's Attorneys: David A. Goldman, Esq. Paul F. Driscoll, Esq. Norman Hanson & Detroy PO Box 4600 Portland, ME 04112-4600

Defendants, The inhabitants of the Town of York.Attorneys: Durward Parkinson, Esq. Leah Rachin, Esq. Bergen & Parkinson, LLC 62 Portland Road, Suite 25 Kennebunk, ME 04043